When Geri Hensley died of cancer in December 2010, her husband, Stan, assumed he would be headed to Summit County Probate Court to resolve ownership of assets from his 53-year marriage.
Hensley hired an attorney, went through a full probate estate process, and after nine months and expenses of $2,800, the house in Green is now just in Stan’s name. Another piece of property in Harrison County remains tied up in probate court there.
Hensley didn’t know that if he and Geri had filed a document called a Joint and Survivorship Deed with the counties, he could have spent about $200 and avoided court. The deed would have allowed house ownership to transfer to a surviving spouse after a death.
It would have cost about $100 for the deed and $100 for a sworn affidavit after Geri died.
Because of cases such as these, new Summit County Probate Judge Todd McKenney is launching a community project to help county residents better understand probate procedures. McKenney said there are 235,483 residential property deeds filed in Summit County.
“The only reason he had a probate estate was to transfer the real estate,” said McKenney of Hensley. “I just don’t see why people should have to do it. I don’t see why Stan had to spend nine months and $3,000.
“It is not just the money, but the frustration of completing the probate estate shortly after the loss of a loved one,” said McKenney, who was appointed probate judge in November and resigned as a state representative to take the position after the retirement of Bill Spicer.
A few days after taking his oath in December, McKenney announced he would not run for election to the job because he had community projects in mind that needed his full attention.
McKenney wants a partnership with communities and volunteers to examine residential deeds on file in Summit County and to notify homeowners who could benefit from a Joint and Survivorship Deed or another document called a Transfer on Death Affidavit (often called a TOD or a TOD deed). The transfer allows a property to go from a single person or widow or widower to heirs. Both scenarios would transfer property without probate court involvement.
McKenney said these are recommended for people in a first marriage or those who are single with adult children and with a home as their largest asset. (Single or divorced parents with minor children might not want to have a TOD to young children.)
Other scenarios involve people in second marriages or situations where parents want an uneven distribution of assets after death. Also, there are situations with people who have larger estate tax issues. In those cases, the two documents would not be a good idea and an estate planning attorney should be consulted, McKenney said. The two documents also do not work for people who have created trusts, which are a different vehicle to possibly avoid probate.
Many people assume their existing deed already gives home ownership to a surviving spouse because of the language, McKenney said. But a deed must say words to the effect of “to the survivor of them” for a transfer.
Most deeds have the word “heirs” in it, but that is legally insufficient, he said.
Project wins praise
Mike Robinson, president of the Akron Bar Association, said McKenney’s project could be the first in Ohio for a probate judge. “I think it’s a great idea. It could potentially save residents thousands of dollars in unnecessary attorneys fees,” he said.
Several lawyers with the Bar Association’s Referral Service have agreed to take less money with a fee of $100 to help residents who would like to create a Joint and Survivorship Deed or TOD Affidavit as a public service project, Robinson said.
Community Legal Aid can also help low-income residents, if needed and if they qualify for services, Executive Director Sara Strattan said.
McKenney doesn’t have a goal for how many records that volunteers will examine, but knows he only has this year for the idea while he is in office. He’d like to cut the number of estate cases by half in five years, he said.
McKenney has started with a pilot program in the village of Reminderville where volunteers have examined 1,500 deeds and found about 37 percent could benefit from updated documents. Deeds filed since 1988 can be viewed online from any computer. Deeds before 1988 can be viewed at the Summit County Fiscal Office or requested by mail. McKenney will have computers in his chambers for volunteers to look up older deeds.
After volunteers compile the list of residents flagged, an independent panel of attorneys, who will not receive legal work for volunteering, will review the deeds.
In Reminderville, Mayor Sam Alonso will send a letter to residents and have volunteers follow up with phone calls about a public meeting with McKenney on Feb. 7 at the Bertram Inn.
Alonso and McKenney said some people might be concerned about volunteers searching through public records about their houses. Deeds do not list monetary value, just the names of the homeowners.
“We’re not just creeping on you as the kids say today,” Alonso said. “We’re really doing it because it is helpful to you. The ball is still in their court. They don’t have to do this if they don’t want to. We just want it to be known there’s another way to look at it.”
Betty Lin-Fisher can be reached at 330-996-3724 or firstname.lastname@example.org. Follow her on Twitter at www.twitter.com/blinfisher.